In the last few months of my military career I began to feel a particular freedom, a mild one most might think, but significant to me. Soon, I realized, I would effectively have all of the rights guaranteed to all Americans. See, when I accepted my commission as an officer in 1989, I effectively signed something away, namely my rights under the First Amendment. I did so willingly, and with full knowledge afore, but 25 years later, it was an interesting idea for me to contemplate. For the first time in a quarter of a century, I would be able to say, or write, whatever I wanted.*

What had held me back all those years was a single part of the unique set of laws that cover the military, the Uniformed Code of Military Justice (UCMJ). That part, known as "Article 88," defined what I could, and could not, say or write from the beginning of my career to the end. It matters today as well. Not for me so much, but for those still in uniform during this particular fecal maelstrom in our nation's political history. And this is important, and has some historical precedent, because from the framers right up through today, there is one thing I know and support with absolute certainty: You do not want the guys with the guns to get involved in domestic politics.

The text of Article 88 is brief and somewhat vague, but worth quoting in its entirety.

"Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct."
Now before we get into how, and why, this matters today we should note that none of this is exactly new. Indeed, the prohibition stretches pretty far back, all the way to King Henry VIII.

Old Henry was, apparently, a bit thin-skinned. He would get really teed off when people said not nice things about him. As he had a demonstrated predilection towards cutting the heads off of people he considered inconvenient, this must have carried some weight. But when those people had weapons of their own, and were perhaps a part of his army/government, he had to be more circumspect.

Over the centuries, this worked its way into the British "Articles of War" which were, more or less, adopted whole-cloth by us when we rebelled. Our original 1775 version applied it this way: "Any officer or soldier who behaved himself with 'contempt or disrespect towards the general or generals, or commanders in chief of the continental forces, or shall speak false words, tending to his or their hurt or dishonor..." A year later, with the Declaration of Independence, that was modified slightly: "Any officer or soldier who 'presume to use traitorous or disrespectful words against the authority of the United States in Congress assembled, or the legislature of any of the United States in which he may be quartered..." Adding in later the President and Vice President, that's pretty much how things stood from 1776 through 1950. Only about 115 men were ever prosecuted under these rules, the vast majority of them for cussing out (depending on the war) either Lincoln, Wilson, or Roosevelt. Then, with the creation of the UCMJ in 1950, the rules changed slightly, removing enlisted members from the restriction and applying it only to officers. This made sense, too, because it is officers who have the legal authority to issue independent commands. (Only one officer has been prosecuted on that charge, a hapless Lieutenant in 1968.)

The officer corps' ethos of remaining politically neutral may have frayed, but it is still extant and more importantly, backed by an actual law. For this reason, if for no other, one should not look towards the armed forces for any sort of independent action with regard to the current administration. But, of course, there is the flip side of the coin that should be examined. What might happen if the current occupant of the Oval Office were to start issuing orders designed to keep himself in power?

That is a more difficult issue to unpack, in part because it comes down to subjective judgments, made by individual officers, about what may or may not constitute an "illegal order." Fortunately, we have at least some precedent in that to which we might look for an outline, if not definitive guidance.

In the summer of 1974, President Richard Nixon's days in office were numbered, that much was certain. What is slightly less well supported by the historical record are the alleged actions of the Secretary of Defense, James Schlesinger, in light of Nixon's erratic behavior. According to Schlesinger himself, he more or less issued a verbal directive to the Chairman of the Joint Chiefs of Staff telling him (and presumably through him the entire military) not to follow any orders emanating from the White House that did not pass first through him, Schlesinger. Under this version of events, about which there is some significant doubt among serious historians, Schlesinger was worried that Nixon might lean upon the Commandant of the Marine Corps (with whom Nixon had been friends since the 1950s) to send Marines to D.C., ostensibly to "defend" the White House from civil unrest. There was no shortage of the latter in D.C. that August.

Though as I said, there are serious doubts about this version of events among historians, but what really matters is that this version has largely entered the American consciousness as the truth, regardless of the evidence or lack thereof. Maybe it was only what Schlesinger wishes he had done. (The Washington Post, at the time, wasn't so sure.) It is also a version of events that has been repeatedly lauded as "the right thing to do."

It seems quite possible that should things go the direction of impeachement, somebody in the civilian chain of command might step in to be sure an unhinged occupant of the White House (or one pretending to give orders on his authority) does not start issuing orders that would force the officer corps into deciding which orders are legal and which are not.

Either way, let us all agree on one basic point: Keeping the Military, all elements thereof, out of domestic politics is both prudent and wise. Eh?

*Technically, as a retiree, I am still subject to the UCMJ. My "retirement pay" is really, legally, a retainer fee paid to keep me and all retirees available to the nation should a national emergency require this drastic action. But no retiree has ever been prosecuted under the UCMJ for this reason.

This post has been updated to reflect the correct spelling of James Schlesinger's name.

Robert Bateman is a former military officer and a current fellow at New America. You can follow him on Twitter @RobertLBateman or write to him at R_Bateman_LTC@hotmail.com

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Boats

O Almighty Lord God, who neither slumberest nor sleepest; Protect and assist, we beseech thee, all those who at home or abroad, by land, by sea, or in the air, are serving this country, that they, being armed with thy defence, may be preserved evermore in all perils; and being filled with wisdom and girded with strength, may do their duty to thy honour and glory; through Jesus Christ our Lord. Amen.